Jivan Lal Ratre v. Ullas Madhu Matkar

HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1025 of 2018 Jivan Lal Ratre, S/o Daras Ram Rathre, Aged About 24 Years, CasteSatnami, R/o Village Girsa, P.S. Sarsiva, Tahsil- Bilaigarh, District Baloda- Bazar Bhatapara (C.G.) ---- Petitioner

Versus

Ullas Madhu Matkar, S/o unknown, Aged About 42 Years, R/o House No. 109A, Rumdawada, Vascodigama, Mormu, Goa, P.S. Sada (Bogda), Goa.

---- Respondent ------------------------------------------------------------------------------------------- For Petitioner :

Mr. Amiyakant Tiwari, Advocate.

For Respondent :

None though served.

------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 16/11/2018 1.

Learned counsel for the petitioner submits that he is not pressing I.A. No. 01/2018, application for condonation of delay in filing the petition, as there is no delay in filing the petition. 2.

Accordingly, I.A. No. 01/2018 is treated to be withdrawn. 3.

Also heard on application filed under Section 378(4) of the Code of Criminal Procedure, 1973 for grant of leave to appeal. 4.

On due consideration, leave is granted.

5.

This petition is preferred under Section 378 (4) of the Code of Criminal Procedure, 1973 against order dated 23.02.2018 passed by Judicial Magistrate First Class, Bilaigarh, DistrictBaloda Bazar- Bhatapara (C.G.) in Criminal Complaint Case No. 396/2017, whereby the said court dismissed the complaint filed under Section 138 of the Negotiable Instrument Act, 1881 for want of prosecution.

6.

It appears from the order-sheet of the said court that the case was fixed for appearance of the respondent on 23.02.2018. It was not fixed for appearance of the appellant. Dismissal of complaint was not only option before the trial court. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:- "18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case.

When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice." 7.

Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.

8.

In view of this Court, all the cases should decide on merits and not send the case to record room without deciding the issues

between the parties and without providing opportunity to adduce evidence. The trial court should have adjourned the case for some other dates as provided under Section 256 of Cr.P.C. but that is not done in the present case, therefore, order passed by the trial court is not sustainable.

9.

Accordingly, order passed by the trial court is set aside allowing the petition. The trial court is directed to proceed with the case in accordance with law after providing opportunity to the petitioner to summon the respondent and after appearance of the respondent, the trial court shall proceed with the case and decide the issues between the parties on merit. 10.

The petitioner shall appear before the trial court on 3rd January, 2019 and the trial court shall proceed further. Sd/- (Ram Prasanna Sharma) Judge Arun